COMMENT: HAND OVER THE FORENSIC LAB TO INDEPENDENT PROFESSIONALS
The confirmation by the Court of Appeal of the conviction and death sentence of the two Burmese men, Wai Phyo and Zaw Lin, for the murders of Hannah Witheridge and David Miller on the Thai island of Koh Tao will not have surprised many.
The fact that the appeals court ruling was read out in secret and the lawyers told about it later may also have raised a few eyebrows.
But neither should be great surprises in the context of the Thai judicial system.
The fact that the 200-page appeal was dismissed (*in which it was argued there was no legal DNA evidence on the killers on Hannah or David; no evidence linking a mobile phone of the victims to the Burmese, no evidence of rape, no evidence of DNA evidence of the accused on the murder weapon, a hoe, but DNA evidence of other male persons) only indicates that the Thai courts may be following a predetermined course.
The prosecution have simply answered in their response to the defendants’ appeal that they did not need to supply all the material confirming the DNA matches as their expert witnesses have confirmed the matches were as described. Indeed the labs kept this as confidential material. Moreover the qualification of the lab under ISO 17025 was irrelevant and in any case not incumbent on government agencies ‘especially when there is national security issue.’
Prosecutors insist that vaginal lacerations were indicative of a sexual assault while the British post mortem it has been reported has concluded those lacerations were cause after death and most probably at the Thai autopsy.
*see summary of plaintiff’s appeal at end of story
That course began when the Thai government itself announced the arrest of the two Burmese and the Chief of Police said Thai work had been congratulated by Scotland Yard (‘We read from the same books’).
It continued with statements by the parents of David Miller and Hannah Witheridge facilitated by the British Foreign and Commonwealth Office, supporting the Thai police action.
The families of the victims appeared to know something the rest of the world knew nothing about. They had been briefed by Scotland Yard.
And the FCO stock reply in cases involving Britons, usually asking for help, is ‘The FCO does not interfere with the justice systems of other countries’.
Naturally the defence wanted to know what this and went to the High Court in London to obtain copies of the Scotland Yard report, no matter how bad it might be for their clients.
At the High Court in London the Metropolitan Police Service confirmed what we did know and that was that Scotland Yard officers, sent on the orders of Prime Minister David Cameron, had no access to witnesses, or the DNA trail, and used a Thai police interpreter.
Moreover, their visit was a political move in the wake of controversies already stirred up by Thai Police statements on the case.
But the Scotland Yard team, which included a scenes of crime officer but not a Home Office DNA expert, was clearly satisfied with the guilt of the two men, otherwise they would not have briefed the family that the investigation was kosher. They however argued against providing their report claiming the ‘Chilling Effects’ defence.
To do so would cause untold harm to their relationship with the Thai police and British national security.
You can read this as Scotland Yard saying they did not want to upset Thai police and international police co-operation. How else could they get British criminals back from Thailand? The judge in the case expressed serious concern.
Since then, the evidence presented in court has also been presented to independent international legal and scientific experts in DNA. And they admit to being entirely baffled as to how the prosecution obtained a conviction.
I have no personal knowledge if Zaw Lyn and Wai Phyo are innocent or guilty.
In 30 years in Thailand and having attended numerous trials I can say I have seen many nonsensical, some might say rigged, verdicts. But the law prevents criticism.
People could take the view ‘Well this is Thailand anyway, but we know the police and lawyers are incompetent but it does not mean the two Burmese are not guilty.’ And in many cases, they would have probably been right.
People should not be swayed by the innocent look on the faces of the Burmese, or state that Burmese migrant workers could not do such a thing. Indeed, they have done in the past in another murder I covered.
In 2009 Eksian Warapon, 19, and an 18-year-old known as Aow were jailed for 25-years and a 17-year-old Burmese was held in a detention centre for murdering Briton Malcolm Robertson after boarding his yacht ‘Mr Bean’ off southern Thailand.
The Burmese had jumped from a Thai fishing vessel on which they had been used as slave labour.
But the island they swam too had no food and little water so they swam to ‘Mr. Bean’ when it was moored offshore.
So, for a minute step back and dismiss all the things that went wrong with the police investigation which were reported. Forget that the Provincial Police Chief General Panya Mamen was quoted as saying the culprits were found and naming two members of a local Godfather’s family.
Forget the fact that the CCTV cameras were not working at the ferry point. Forget about the alleged row between Hannah and David and a local in the AC bar. Forget about the torture of Burmese suspects, and forget about the police press conference in praise of a local Godfather and clearing his son. Forget also for a second all the other deaths of foreigners on this island.
Remove all these prejudices.
What is crucial in this case is the DNA upon which the police relied to obtain their convictions.
That evidence, says, the defence was totally invalid. And international experts agree.
Are the Thai police capable of setting up people with DNA? Yes, certainly. They tried to do that in the yet unsolved murder and rape of Kirsty Jones in Chiang Mai 17 years ago, when they kidnapped a Burmese tour guide, beat him, and tried to masturbate him. This too was a case the Thai police wanted to go away. And still it has not been solved.
So where to go next? Should the defence play by the book and go to the Supreme Court in the hope that judges at this level are more impartial? Yes, they should, but that is not enough.
But as this whole case has also been a matter of national face saving. It may not work.
The defence has had an ace up its sleeve, which it has never used. The police laboratory gets its ISO accreditation from the Bureau of Laboratory Quality Standards.
The consensus among international experts taken from the evidence alone is that the evidence alone shows that this laboratory has not lived up to the standard either scientifically or legally.
The problem is that the defence had in fact prepared a complaint to BLQS but that complaint was hijacked by an Australian lawyer Ian Yarwood, who stated that he had ‘oral consent’ to represent the Burmese.
This was a disastrous move. It enabled the BLQS, who had earlier stated that their officers were willing to conduct an enquiry, to give Yarwood a reply which went along the lines of ‘Who do you think you are then?’ It was foreign instrusion.
The defence then decided not to proceed with its own complaint. They knew after all that there was sufficient in their appeal document to acquit Wai Phyo and Zaw Lin.
The appeal court ruled otherwise.
Now is the time to make that complaint. This should be done by Thai lawyers. In Thailand you cannot guarantee that by going by the book with a watertight case that you will succeed in court. Most Thais know this.
And this is something BBC correspondent Jonathan Head should consider when he goes into court in a ‘watertight’ case in which a Thai lawyer who has accused him of libel under the computer crime act.
If the BLQS rules that the Thai police lab did breach the rules, then that is a Thai decision and there has been no foreign interference.
At stake is the entire justice and judicial system.
If the BLQS rules that the police lab acted properly then that enquiry can then be scrutinised by APLAC, the Asia Pacific Laboratory Accreditation Cooperation.
At this point it becomes international and the whole laboratory testing procedures in Thailand are called into question. It should not need to go that far.
Below is the summary of the major points of the appeal by lawyer Nadthasiri Bergman LL.M.
A 198-page appeal on behalf of the accused Burmese defendants in the Koh Tao murder trial has been filed with the Region 8 Court of Appeals on Koh Samui, Thailand. I regret that the pro bono defence team does not have the $5,500 budget necessary to pay for a proper translation into English.
This ground-breaking case is the first in the history of the Thai justice system where police forensic evidence was challenged by the defence and forced to be independently retested. As we feel it is vitally important the content of this public document be made known to the world at large, I have summarized and translated several of the strongest points of the defence’s arguments into English, and mention a few points of concern not addressed in the appeal as well.
Police claimed DNA collected from the scene was sent to Singapore for testing and determined the suspects were Asian. Thai police experts later stated this race determination was only revealed by testing at Prince of Songkla University hospital lab twenty days after the suspects were arrested. It was later revealed DNA samples were never sent to Singapore. Regardless, this set the stage for racial profiling of potential suspects.
The defendants were arrested on unrelated charges, questioned about the murder before having an attorney present and their statements were entered as part of the prosecution’s evidence. This is a violation of Thai law and grounds for dismissal of the case.
DNA samples from both accused were collected without consent and before they were informed of the murder charges.
During interrogation, police appointed a hostile interpreter who could not read Thai. The defendants were never properly advised of the murder charges nor their rights under Thai law.
Both accused testified they were stripped naked by police during interrogation and physically assaulted including punching, kicking, plastic bags over their heads, genital attack etc. Wound and bruise evidence of torture was confirmed by three doctors and one detainee witness.
Chain of custody of mobile phone was never provided, no photo of where it was found etc.
Fingerprints of the accused on the mobile phone identified as belonging to one of the victims were never produced as evidence, raising the question of whose fingerprints may have been found on the phone. In fact, there was no forensic evidence presented by the prosecution connecting the mobile phone to the accused.
Prosecution claims the accused motive for murder was arousal as a result of encountering the victims having sexual intercourse on the beach. The small abrasion found in the victim’s vagina during autopsy could easily have been a result of sexual intercourse between the victims.
Thai autopsy was not able to determine if intercourse had taken place before or after death. Therefore, prosecution was not able to prove rape had taken place.
Thai autopsy results for both victims was only a four page typed summary by the doctor. The legally required autopsy file documenting the procedure with step-by-step photos and point-by-point analysis was never presented.
In stark contrast, the British autopsy report fully documented and presented the entire procedure with step-by-step photos and point-by-point analysis by the forensic pathologist in charge.
The incision discovered inside the victim’s vagina was determined by British autopsy to have been caused during the Thai autopsy, not a result of sexual assault.
DNA files presented had the accused names on them rather than a proper sample reference number. This is not possible without pre-knowledge of who’s DNA the sample being tested belonged to.
Retesting of the handle of murder weapon found DNA matching the male victim, but DNA matching neither of the accused was discovered. Originally police claimed there was no DNA evidence found on the handle of the murder weapon.
After results of DNA found on the handle of the murder weapon was disclosed in court to be from the male victim, prosecution admitted they had also found DNA matching the male victim on the handle of the murder weapon, but no DNA matching the accused. This case damaging evidence had not been introduced by the prosecution and raises the question of what other potentially case damaging evidence may have been withheld such as clothes of the victims allegedly not tested for DNA and why blood in the sand at the murder scene allegedly produced no DNA results, etc.
Multiple procedures are required to meet ISO 17025 international standards in DNA testing. The chain of custody, method of testing, graph generated and case notes resulting in the analysis report produced are all required to allow an independent expert to verify the results. Only the results of the test without any required supportive documents was provided by the prosecution witness.
Police claimed a 100% DNA match with the accused from samples allegedly taken from the victim’s body. This is scientifically impossible in any forensics testing laboratory anywhere in the world. For example, swabs taken from the victim would contain a minimum of three different DNAs producing what is known as a “mixed sample”. Mixed samples can be the most difficult to interpret, and from which a 100% match is never possible.
Thai forensic scientist Dr. Porntip’s DNA testing listed the statistical probability of a match on the results report. None of the prosecution’s DNA results presented indicated a statistical probability on the results reports. The “100% match” was only delivered verbally in court by a prosecution witness.
Above are the main points argued by the defence team as to why the two accused should be found not guilty. There were other important points about the case which were not included as part of the defence’s appeal such as;
CCTV footage of the only pier with boats leaving the island in the hours immediately after the murders was allegedly not examined by police. The accused already admitted they were in the vicinity at the time of the murders, therefore this important point had nothing to do with evidence presented in court related to the accused so it was not included in the appeal;
Blond hairs found in Hannah’s hand were confirmed in court to not belong to either of the victims or the accused. Since the hair was not evidence linking the accused to the crime, it was not included as part of the appeal. While it is direct evidence linking someone else to the crime, the question of who the hair belonged to remains a mystery and an important point, but not one the defence could use in the appeal.
It is the opinion of the defence team that the prosecution’s requirement of proving guilt beyond a shadow of a doubt has clearly not been met. The defence believes this case should be dismissed and the defendants immediately released from custody.
Nadthasiri Bergman LL.M. Esq.